CHILDREN: NEW SA REGULATIONS FOR TRAVELLING.

On 26 May 2014 new regulations were introduced to regulate South Africa’s immigration policy. The new regulations have been viewed as controversial and have caused widespread outcry from the public. Notwithstanding the public outcry the regulations will remain applicable until such a time as they have been replaced or declared unlawful through a court process.

The purpose of this article is to inform the public of new regulations in respect of the entry, departure and travel of children into and out of South Africa.

Regulation 6(12) of the Immigration Act now recognises 4(four) ways in which Children can travel, namely:

  1. Where both parents of a child are travelling with child;
  2. 1(one) parent of the child is travelling with the child;
  3. A person is travelling with the child that is not his/ her biological child; and
  4. A child is travelling unaccompanied.

Depending on which way a child is to travel, there are various documents that must be provided to the relevant border authorities to allow the child to enter into or depart from South Africa.

WHERE BOTH PARENTS OF A CHILD ARE TRAVELLING WITH THE CHILD:

Regulation 6(12)(a) provides that where both parents are travelling with a child they must produce the child’s original unabridged birth certificate reflecting the particulars of both parents of the child.

WHERE 1(ONE) PARENT IS TRAVELLING WITH A CHILD:

Regulation 6(12)(b) provides that where 1(one) parent is travelling with a child, he or she must provide the following:

  • The child’s original unabridged birth certificate reflecting the particulars of both parents of the child ; and
  • An affidavit by the non-travelling parent authorising the travelling parent to enter into or depart from South Africa with the child; or
  • A court order granting the travelling parent full parental rights and responsibilities or legal guardianship in respect of the child, if he or she is the parent or legal guardian of the child; or
  • Where applicable, a death certificate of the other registered parent of the child or the unabridged birth certificate.

 

WHERE A PERSON IS TRAVELLING WITH THE CHILD THAT IS NOT HIS OR HER BIOLOGICAL CHILD:

Regulation 6(12)(c) provides that where a person is travelling with a child that is not his or her biological child that a person must provide the following:

  • a copy of the unabridged birth certificate of the child reflecting the particulars of both parents of the child;
  • an affidavit from the parents or legal guardian of the child authorising that the person travelling with the child has permission to travel with the child;
  • copies of Identity Documents or Passports of the parents or legal guardian of the child; and
  • the contact details of the parents or guardians of the child.

WHERE A CHILD TRAVELS UNACCOMPANIED:

The regulations define an “unaccompanied minor” as a child under the age of 18(eighteen) years who travels alone.

Regulation 6(12)(d) provides that an unaccompanied minor must provide the following:

  • proof of consent from 1(one) or both of his parents or legal guardian , in the form of a letter or affidavit for the child to travel into or out of South Africa, provided that where 1(one) parent provides the consent , a copy of the court order issued to that parent granting him or her parental rights and responsibilities in respect of the child, is simultaneously provided;
  • a letter from the person who is to receive the travelling child, containing his or her residential address and contact details in South Africa;
  • a copy of the Identity Document or Passport and Visa or permanent residence permit of the person who is to receive the child in South Africa; and
  • the contact details of the parents or legal guardian of the child.

POSSIBLE EXCEPTIONS:

While the regulations are quite clear on the ways a child can travel and what needs to be provided to allow that child to travel, they also cater for unforeseen circumstances where both parents of a child are deceased.

Regulation 6(12)(c) and 6(12)(c) provide that the Director-General of the Department of Home Affairs may, where the parents of a child are both deceased and the child is travelling with a relative or another person related to the child or the child’s parents, approve the person who is travelling with the child to enter into or deport from South Africa with the child.

EXTENSION ON REQUIREMENT OF UNABRIDGED BIRTH CERTIFICATE:

Due to public outcry the Department of Home Affairs announced on 10 June 2014, that the requirement that an unabridged birth certificate of a child must be provided when travelling with the child will only be enforced from 1 October 2014.

The Department has urged members of the public and foreign nationals, to apply for unabridged birth certificate for their children to ensure compliance from October 2014.

CONCLUSION:

While the new regulations have cause controversy, they are aimed at preventing child trafficking, child abduction and child kidnapping. It is the writer’s view that the introduction of the new regulations are an important development which further the safety and security of children in South Africa, gives meaning to the children’s rights in the Constitution and assists in the enforcement of the Hague Convention on International Child Abduction. In a world where innocent children are placed in harm’s way every day, it is both important and necessary to do all that can be done to prevent such harm.

Nuno Palmeira

About Ian Mc Laren

Ian McLaren BA LLB (WITS) General Educated St Johns College, Houghton. BA LLB University of the Witwatersrand 1984 Founded McLarens September 1986. Right of Appearance High Court, October 1996. Expertise Litigation, Labour Law, Commercial Law, Family Law, Pension and Provident Funds, Customs and Excise, Wills, Deceased Estates, Trusts, Commercial Agreements, Reviewing and Drafting Government Legislation, Information Technology. Committees/ Trusts Law Society of South Africa Information Technology Committee. Trustee Verney College Educational Trust Other Transvaal Provincial colours for Practical Shooting. Third degree Black Belt JKS Karate. Photographer and motor cyclist Lectured for Continuing Legal Education on Information Technology issues.

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